USA v. Julian Hernandez-Nevarez, No. 20-50074 (5th Cir. 2020)

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Case: 20-50074 Document: 00515519287 Page: 1 Date Filed: 08/07/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 20-50074 Summary Calendar FILED August 7, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JULIAN HERNANDEZ-NEVAREZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:19-CR-2969-1 Before HAYNES, WILLETT and HO, Circuit Judges. PER CURIAM: * Julian Hernandez-Nevarez appeals the within-guidelines, 37-month sentence imposed following his guilty plea conviction for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. He argues that his sentence was imposed under an unconstitutional sentencing provision because § 1326(b) permits a defendant’s sentence to be enhanced even if the fact of a prior conviction is not alleged in the indictment and proved beyond a Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 20-50074 Document: 00515519287 Page: 2 Date Filed: 08/07/2020 No. 20-50074 reasonable doubt. He correctly concedes that his claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he raises the issue to preserve it for further possible review. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2

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